The Indigenous World 2023: Business and Indigenous Peoples’ Rights

Written on 30 March 2023. Posted in Business and Indigenous Peoples’ Rights

The UN Human Rights Council established the Forum on Business and Human Rights^[1] in 2011 to serve as a global platform to “discuss trends and challenges in the implementation of the Guiding Principles and promote dialogue and cooperation on issues linked to business and human rights”.^[2] The Forum is led and chaired by the Working Group on Business and Human Rights.^[3]

This Forum is the world's largest annual meeting on business and human rights with more than 1,500 participants, including representatives from governments, business, civil society organizations, Indigenous Peoples' organizations, UN agencies, national human rights institutions, academic institutions, etc.

The Forum provides a unique opportunity to network, exchange experiences and learn from the many initiatives aimed at promoting respect for human rights on the part of businesses.

This article is part of the 37^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is of an Indigenous person in Tanzania. This photo was taken by Geneviève Rose, and is the cover of the Indigenous World 2023 where this article is featured. Find the Indigenous World 2023 in full here.

11^th session of the Forum on Business and Human Rights

This session took place at the United Nations (UN) Palais des Nations in Geneva, Switzerland, on 28, 29 and 30 November 2022.

The session provided an excellent opportunity for all participants to discuss the implementation of the second decade of the Guiding Principles on Business and Human Rights. The central theme of this year's session was a stocktake of efforts to ensure accountability and access to redress, focusing on how the implementation of the Guiding Principles can be accelerated from the perspective of rights-holders.

After two years of virtual sessions due to the COVID-19 pandemic, the 2022 Forum session took a hybrid format, both virtual and face-to-face. Around 50 Indigenous representatives from different regions of the world actively participated in the work of this session.

Opening session: the statement of the Global Indigenous Peoples' Caucus

During the opening session, the Chair, Fernanda Hopenhaym, emphasized that the work of environmental and human rights defenders continued to be a great challenge and that any attack on them was unacceptable. She also noted that greater efforts were required by all parties if real progress was to be achieved in implementing the Guiding Principles. The roadmap for the next decade, drawn up by the Working Group on Business and Human Rights, focuses on effective implementation of the Guiding Principles, for which it was noted that it would be necessary to adopt binding measures at the domestic and international levels.

Implementation gaps and challenges undoubtedly remain the key issue. The Working Group has called on companies and States to develop tools for implementation of the Guiding Principles, and to promote a dialogue between the different stakeholders in order to advance the implementation process. The Chair concluded her speech by saying that the Forum was a safe space, without exclusion, and that she hoped that there would be no impediment to all participants being able to return to their countries without suffering reprisals.

During the opening session, Yana Tannagasheva, an Indigenous member of the Shor people of Siberia (Russia), also read out the declaration of the Global Indigenous Peoples' Caucus. In this statement she stressed, “While the decade of implementation of the Guiding Principles on Business and Human Rights (UNGPs) has contributed to increased awareness and attention on the rights and concerns of Indigenous Peoples in relation to business, more decisive action is urgently needed from States and businesses, especially at the national and local levels, for the implementation of the three pillars of the UNGPs in order to realize the rights and well-being of Indigenous Peoples.”

In this statement, Indigenous Peoples pointed out that corporate activities on their territories have been and continue to be the cause of forced displacement, and the destruction of their ways of life, their Indigenous food systems, their cultural heritage and sacred sites, harming their governance systems and the resilience of their communities, among other things. They also warned that they continue to suffer from massive environmental devastation of their territories, including air and water pollution, toxic waste, loss of biodiversity, degradation of their lands, forests and other resources. Indigenous Peoples fear that this will now continue in the name of economic recovery following the COVID-19 pandemic, as well as in relation to climate change mitigation actions and the energy transition if their rights to land, territories and resources are not recognized and fully protected.

The statement also explained that, in defending their lands and resources, Indigenous Peoples continue to be subjected to violent attacks, criminalization, threats and serious human rights violations such as murders, arbitrary arrests and detentions, violence against Indigenous women and girls, and torture, among other things. The strong message from the Indigenous Peoples was that these practices must end.

In addition, the Declaration of the Global Indigenous Peoples’ Caucus focused on the need to establish effective corporate accountability mechanisms, ensure the meaningful participation of Indigenous Peoples and include their collective rights in National Action Plans (NAPs).

The active participation of Indigenous Peoples from the different regions of the world and their inclusion on most of the panels organized by the Office of the High Commissioner for Human Rights (OHCHR) was notable in this 11^th session of the Forum. During the different panels, the representatives of Indigenous Peoples specifically denounced the siege conditions and criminalization being suffered by defenders of the rights of Indigenous Peoples at the hands of corporate entities, in complicity with the States. They also denounced the impacts of mining companies on their territories, the continued lack of consultation in relation to extractive projects on their territories, the camouflaging of the green economy by which States capture donations and loans to finance programmes that negatively affect them, for example, by declaring protected areas without informing or consulting the rights-holders of those territories.

For their part, the States in attendance at the Forum continued to state their commitment to human rights in the area of business activities. Some States made specific references to the NAPs they have already developed in relation to implementing the Guiding Principles on Business and Human Rights. On the issue of defending environmental rights and the situation of environmental defenders, special mention was made of the Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Matters in Latin America and the Caribbean,^[4] better known as the Escazú Agreement, which is an international treaty signed by 25 countries and ratified by 14 countries in Latin America and the Caribbean regarding protocols for protection of the environment. It nevertheless remains a perennially challenging issue primarily due to gaps in the implementation of legal norms, whether domestic or international by nature. Among the best practices presented, the European Union reported that it was working on a binding law on due diligence in relation to corporate actions and stressed that “it is time to move towards binding legislative measures that oblige companies to comply with their responsibilities”.

During the last session of the Forum, on 30 November, a panel entitled “Ending the Criminalization of Indigenous Peoples' Rights Defenders: the Way Forward” was held.^[5] This official panel was organized by the Working Group on Business and Human Rights, Indigenous Peoples Rights International (IPRI), Forest Peoples Programme (FPP), Asia Indigenous Peoples Pact (AIPP) and the International Work Group for Indigenous Affairs (IWGIA).

During the session, panellists highlighted the challenges faced by Indigenous Peoples in defending their rights from corporate-related abuses. Emerging good practices were shared to prevent and eradicate attacks, criminalization and other threats faced in the context of corporate activities, and opportunities for cooperation between Indigenous Peoples' rights defenders, States and companies were identified to facilitate the adoption and implementation of the Guiding Principles.

Most of the speakers’ statements encouraged private companies and States to respect human rights, emphasizing that a country's economic growth must be framed within the context of respect for human rights, and that they cannot continue to resort to strategies of siege, defamation and violence to silence the voices of those working to defend human rights, environmental rights, diversity/gender rights and Indigenous rights in the context of business activities. As was to be expected, both the companies and the government representatives who participated expressed their commitment to human rights, despite the fact that, in many cases, the reality in which most of the world's Indigenous Peoples live is unfortunately very different. Nevertheless, it must be recognized that good practices and initiatives to respect human rights were also presented by some companies and governments. One such example was the presentation of a law approved by the German government, which came into force in January 2023, obliging all private companies in the country to fully respect and implement the Guiding Principles on Business and Human Rights.

Closing of the session: the final statement of the Global Indigenous Peoples' Caucus

As at the opening session, the Global Indigenous Peoples' Caucus had the opportunity to make a statement at the closing session on behalf of the 50 Indigenous organizations present at the Forum. Benito Calixto, an Indigenous Peruvian, was designated as their spokesperson. In his statement he said: “As we have heard over the past three days, human rights defenders, including Indigenous defenders, suffer intimidation, criminalization and all kinds of violence, including murder and forced displacement, when they defend their fundamental rights and their lands and territories from corporate operations. States have adopted legislation to protect businesses and investments that are not in line with their human rights obligations. In some cases, security forces are deployed in our territories to protect investments, and this only increases the violence and human rights violations. When States fail in their duty to protect and companies ignore their responsibility to respect, strong accountability and grievance mechanisms are needed, with clear parameters on access to information, access to justice in different jurisdictions, and clear processes for fair redress when violations of Indigenous rights have occurred.” In turn, he recalled that the Working Group on Business and Human Rights, treaty bodies and other UN human rights mechanisms have made numerous recommendations calling on States to protect the rights of Indigenous Peoples to self-determination, their lands and waters, their cultural heritage and the obligation to obtain the Free, Prior and Informed Consent (FPIC) of Indigenous Peoples in the context of corporate operations. He also pointed out that: “There are rulings from regional and national courts and resolutions from regional parliaments. But the situation in the territories does not change.”

In this speech, the Global Indigenous Peoples' Caucus expressed its solidarity with Expert Mechanism on the Rights of Indigenous Peoples’ member, Anexa Alfred Cunningham, who has been prevented from returning to her country by the Nicaraguan government. The government took this step following Anexa's participation in the 15^th session of the Expert Mechanism on the Rights of Indigenous Peoples, which took place in Geneva in July 2022.

The Indigenous Peoples' statement was unanimously endorsed by all participants in this closing session of the 11^th session of the Working Group on Business and Human Rights.

Larry Salomon P is a Mayangna from Nicaragua. He is a lawyer and notary public, a defender of Indigenous rights with a focus on Nicaragua and a university lecturer. He is an expert on Indigenous Peoples' human rights and is a former fellow of the Indigenous Fellowship Programme of the OHCHR and the University of Deusto.

This article is part of the 37^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is of an Indigenous person in Tanzania. This photo was taken by Geneviève Rose, and is the cover of the Indigenous World 2023 where this article is featured. Find the Indigenous World 2023 in full here.

Notes and references 

^[1] United Nations Forum on Business and Human Rights | OHCHR. See https://www.ohchr.org/en/hrc-subsidiary-bodies/united-nations-forum-business-and-human-rights

^[2] OHCHR. Guiding Principles on Business and Human Rights. New York and Geneva: OHCHR, 2011. Available at: https://www.ohchr.org/sites/default/files/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf

^[3] Working Group on Business and Human Rights: OHCHR. See https://www.ohchr.org/en/special-procedures/wg-business

^[4] ECLAC. Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Matters in Latin America and the Caribbean. ECLAC, 2022. Available at:  https://www.cepal.org/en/escazuagreement.

^[5] United Nations Forum on Business and Human Rights. “Session: Ending the Criminalization of Indigenous Human Rights Defenders: The Way Forward”. Geneva: 29 November 2022. Available at: https://static.sched.com/hosted_files/2022unforumbhr/1d/Sesion%20sobre%20criminalizacion%20de%20pueblos%20indigenas_Foro%20Anual%202022.pdf

Tags: Business and Human Rights , Global governance, Human rights, IWGIA